In 1973, in their decision in Roe v. Wade, seven U.S. Supreme Court justices announced that the right to privacy in the U.S. Constitution prohibits state legislatures from prohibiting abortions during the first trimester of pregnancy. Then in 1992, in a decision called Planned Parenthood v. Casey, five other justices changed the rules to say that the right to privacy prohibits state legislatures from prohibiting abortions prior to the time a fetus is viable outside the womb. They also announced that state legislatures may regulate abortions as long as a particular restriction or requirement does not impose an “undue burden” on the ability of a woman to obtain one.
For almost half a century, right-of-conservative evangelicals and other members of the anti-abortion movement have schemed to reconfigure the makeup of the U.S. Supreme Court in order to rid the world of Roe v. Wade, so that state legislatures that wish to do so can again prohibit all abortions.
That scheming finally is on the cusp of achieving its long-sought objective. On May 17, four — and maybe more — justices agreed to review Dobbs v. Jackson Women’s Health Organization, a decision in which the Fifth Circuit Court of Appeals invalidated a statute the Mississippi Legislature enacted in 2018 that prohibits abortions more than 15 weeks after a pregnancy, even in cases of rape or incest.
Potentially, there are at least five justices who will vote to reverse the Fifth Circuit and, in doing so, overrule Roe v. Wade: Clarence Thomas, Sam Alito, and the Trump triplets: Neil Gorsuch, Brett Kavanaugh and Amy Barrett. And it will be as easy as pie for them to do that. Because guess what? There is no right to privacy in the U.S. Constitution.
That’s just something that, eight years before the Court decided Roe v. Wade, seven justices invented in a decision called Griswold v. Connecticut. When they did, one of the dissenters, Justice Hugo Black, lectured his brethren: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”
Since there is no such specific provision in the U.S. Constitution, what seven justices invented in 1965 and, in 1973, enshrined in Roe v. Wade, five different justices can un-invent in 2021. This would demonstrate that, contrary to the popular mythology, rather than a society ruled by law, America is what it always has been: a society ruled by the caprice and intellectual prejudices and personal agendas of the men — and, since 1981, when President Reagan appointed Sandra Day O’Connor to the Supreme Court, also of the women — whom various presidents have appointed to the U.S. Supreme Court. The presidents have done so because they expect those men and women to issue decisions those content will be consistent with the policy and political views of the president who appointed them.
By contrast, the history of the right to privacy in the Alaska Constitution is instructive.
Like the U.S. Constitution, the Alaska Constitution that Alaska voters approved in 1956 did not contain a right to privacy. However, in 1972, Terry Miller, the Republican majority leader of the Alaska Senate, thought it should. So he introduced a resolution to put an amendment on the primary election ballot whose passage would add a right to privacy to the list of individual rights in Article I of the Alaska Constitution.
In the Legislature, Sen. Miller’s resolution was noncontroversial. The Republican-controlled Senate passed the resolution by a vote of 16 to 2, and the Democratic-controlled House did the same by a vote of 39 to 1. And during the primary election an astonishing 86% of Alaska voters approved the amendment. As a consequence, since 1972, section 22 of Article I of the Alaska Constitution has provided that “The right of the people to privacy is recognized and shall not be infringed.”
Insofar as the abortion controversy is concerned, what has been the consequence?
In 1995, in a decision called Valley Hospital Association v. Mat Su Coalition for Choice, a unanimous Alaska Supreme Court ruled that the right to privacy in section 22 includes within its purview the right to obtain an abortion, and that — rather than the “undue burden” test the U.S. Supreme Court invented in Casey — the Alaska Legislature may enact a statute that infringes on a woman’s exercise of her right to obtain an abortion only if a particular infringement advances the achievement of a compelling state interest and there is no less restrictive means by which that interest can be advanced.
So if, this fall, five or more U.S. Supreme Court justices overrule Roe v. Wade — as many legal pundits now predict — for women in states like Mississippi, and Texas, where the Legislature recently prohibited abortions after the heartbeat of a nonviable fetus is detected, the consequence will be immediate and adverse. This will be particularly true for poor women who, because they lack the financial means to travel to another state to obtain an abortion, will be compelled by penurious circumstance to have children they do not want and may not be able to afford to raise. However, for women in Alaska, whether rich or poor, the present status quo will continue.
If members of the Alaska anti-abortion movement — including Gov. Mike Dunleavy, who last winter proclaimed Jan. 22 “Right to Life Day” — want someone to blame, and if the 63% of Alaskans who, per the Pew Research Center, think the Alaska Legislature has no business involving itself in a woman’s decision to terminate her pregnancy want someone to thank for that result, that someone is Terry Miller.
In 1989, at 46 years old, Terry Miller died of cancer. So he did not live to see the right to privacy in the Alaska Constitution invoked to prevent governors like Mike Dunleavy and anti-abortion members of the Alaska Legislature from imposing their policy views on women who disagree with them. But, having known Terry Miller, I think he would be pleased.
This is not because the right to privacy in the Alaska Constitution prevents the Legislature from implementing the anti-abortion agenda. I have no idea what Terry’s policy views on abortion were. But because — thanks to him — in 1995, the Alaska Supreme Court resolved the emotionally contentious debate by applying a provision of the Alaska Constitution that in 1972, all Alaska voters were afforded an opportunity to participate in deciding whether to include in their constitution, rather than by applying a rule of law that seven unelected U.S. Supreme Court justices simply made up in order to achieve an outcome they personally considered socially desirable.
Of course, the Alaska Supreme Court justices who issued the Valley Hospital Association decision simply decided between themselves that section 22 mandates the “compelling state interest” test, rather than the “undue burden” test the U.S. Supreme Court invented in Casey. But in an imperfect world, that is as close to an outcome based on the rule of law — rather than on the policy preferences of the men and women who governors of disparate political views have appointed to the Alaska Supreme Court — as Alaskans can expect.
Donald Craig Mitchell is an Anchorage attorney, author of two books on the Alaska Native Claims Settlement Act and “Wampum: How Indian Tribes, the Mafia, and an Inattentive Congress Invented Indian Gaming and Created a $28 Billion Gambling Empire.” He was also a former vice president and general counsel for the Alaska Federation of Natives.
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